September 1993: Minor Disciplinary Court -- Due Process Gets a Rough Ride
As discussed, the legal framework governing prison discipline draws a distinction between serious and minor offences. Under s. 27(2) of the Corrections and Conditional Release Regulations, a disciplinary offence which is designated serious must be heard by an Independent Chairperson. S. 27(1) specifies that the hearing of a minor charge is to be conducted by the institutional head or a staff member designated by the institutional head. A further difference between serious and minor charges lies in the sanctions consequent upon conviction. Only following conviction of a serious offence can a sentence of punitive segregation be imposed, and the maximum fines, orders of restitution, and loss of privileges are greater for serious offences. However, the procedural code set out in the CCRA and CCR Regulations regarding such matters as notice of the offence, conduct of the hearing, calling of evidence, burden of proof, and recording of the proceedings are common to both serious and minor offences. In other words, the legislative framework assumes a model of due process applicable to all disciplinary offences. It therefore becomes possible, through observing how minor offences are adjudicated, to see if the institutional staff conducting this adjudication interpret the due process of law in qualitatively different ways from Independent Chairpersons.
At Matsqui (and other federal institutions), the hearing of minor charges is delegated to correctional supervisors. The hearings are not held according to a regular schedule, like the Independent Chairperson's court, but are scheduled at times convenient to the Correctional Supervisor. By September 1993 a significant backlog of minor charges had built up, and on September 23 correctional supervisor Mike Csoka was given the daunting task of trying to clear this. The disciplinary docket consisted of thirty-eight cases. The hearings were conducted beginning at 1:00 p.m. in the office of one of the unit managers in the main living unit. With Mr. Csoka were two CO-IIs, although th role of those two officers was not clear to me (nor was it indicated to any prisoner). Whereas the Commissioner's Directives specifically provide that the institutional head shall designate a staff member to assist the Independent Chairperson in the hearing of serious charges, there is no similar provision for any assistant role for minor charges.
The first case heard by Mr. Csoka involved Mr. Hurst, who was charged with contravention of s. 40(p) of the Corrections and Conditional Release Act ; this section covers refusing to work or leaving work without reasonable excuse. The gist of the offence, as set out in the offence report, was that when told to lock up (go back to his cell), Mr. Hurst said to Officer Logan, "You can kiss my ass." Mr. Csoka did not ask for a plea but instead asked Mr. Hurst for his explanation. Mr. Hurst responded that he was not aware that if he was not working he had to stay in his cell. He had a morning job, and this incident had occurred in the afternoon; if the officer had told him first that the rule was he had to lock up if he wasn't working, he said there would have been no problem. Mr. Csoka replied, "I have known Officer Logan for ten years. He does the job the way it should be done. He doesn't have any attitude problem." Mr. Hurst was then asked to leave the room. In his absence, Officer Laker, one of the CO-IIs, said that Mr. Hurst had apologized to Officer Logan the next day. The other CO-II added that this was Mr. Hurst's standard practice: he mouthed off and then felt bad about it afterwards. Mr. Csoka said, "The bottom line is that he admitted saying to an officer, 'You can kiss my ass,' so he's guilty." The discussion then turned to the appropriate sentence. A fine of $10 was agreed upon. Mr. Hurst was brought back into the room and Mr. Csoka said, "I'm not all that familiar with the law and I forgot to take your plea. I'm marking it down as not guilty and I'm finding you guilty." Mr. Hurst asked what he was guilty of, and Mr. Csoka replied, "Swearing at the officer."
There are a number of comments to be made about this first hearing. As Mr. Csoka himself observed, there was no plea taken, as is required by s. 30 of the Commissioner's Directives. Nor was the procedure set out in s. 31 of the Directives followed. Section 31 requires that, where the plea is not guilty, "the accused inmate shall be given a reasonable opportunity to question witnesses, through the Chairperson, introduce evidence, call witnesses on his or her own behalf, and examine exhibits and documents relied upon. The inmate shall be afforded the opportunity to make relevant submissions, including submissions regarding the appropriate sanction, during all phases of the hearing." In Mr. Hurst's case, the charging officer was not called upon to give evidence, and Mr. Hurst was not invited to make submissions regarding the appropriate sanction. In addition, s. 43(2) of the CCRA provides that "a hearing shall be conducted with the inmate present unless (a) the inmate is voluntarily absent; (b) the person conducting the hearing believes on reasonable grounds that the inmate's presence would jeopardize the safety of any person present at the hearing; (c) the inmate seriously disrupts the hearing". In Mr. Hurst's case, he was told to leave the hearing during important stages of the deliberations - determination of whether he had committed the offence and discussion of the appropriate sentence -- although there were no grounds to justify his exclusion. The final problem with Mr. Hurst's hearing was that the statement set out in the offence report, if proven by evidence, might have supported a charge under s. 40(f) -- "being disrespectful or abusive towards a staff member in a manner that would undermine the staff member's authority," -- but it clearly did not support the offence with which Mr. Hurst was charged: without reasonable excuse, "refuses to work or leaves work." Mr. Hurst was charged under the wrong section of the CCRA and should have been found not guilty.
In the next case, Mr. Clark was charged with wilfully disobeying a written rule governing the conduct of inmates, contrary to s. 40(r) of the CCRA. The allegation was that he had forced open the barrier at the end of 1 South range. He pleaded not guilty. In response, Mr. Csoka said, "Give us your explanation of why you're not guilty." Mr. Clark said, "I didn't push the barrier." Mr. Csoka continued, "Why did the officer think it was you, then?" Mr. Clark replied, "I may have been the first one out of the barrier and he may have thought that I pushed it." Officer Moran was then called into the hearing to give evidence, and Mr. Csoka asked him, "Is this the inmate you saw force open the barrier?" Officer Moran said it was. Mr. Clark asked Officer Moran, "How did you know it was me?" Officer Moran responded, "Because I called you back and you gave me the finger." Mr. Clark was then asked to leave the room. Mr. Csoka announced, "Well, he's obviously guilty." Officer Moran suggested that this was not a minor matter, because when prisoners force the barrier they could end up breaking it. There was a consensus that an appropriate fine was $10.
Mr. Clark was brought back into the room and told he was being fined $10. He responded, "I'm not working, how can you fine me?" Mr. Csoka responded, "Thanks for telling me. Do you have any money in your account?" Mr. Clark said no. A discussion ensued between the officers about whether it would be appropriate to impose early lock-up as the penalty. Mr. Clark said, "I'm on lock-up already." He was reminded that his lock-up was during working hours; early lock-up would mean he'd be locked up during leisure hours as well. Mr. Clark was then sentenced to two weekends' lock-up; Mr. Csoka explained that on Friday night Mr. Clark would be locked in his cell until Monday morning. Mr. Clark responded bitterly, "How about I do it in the hole?"
As Mr. Clark left the room, he had no idea that his sarcastic suggestion would be taken seriously. Early lock-up posed problems for staff in keeping track of prisoners, particularly on a range where there were no toilets in the cells. In such cases, the prisoner would have to be let out of his cell to use the common washroom at the end of the range, and it was difficult for the officer in the control bubble to ensure the prisoner went back to his cell. The alternative was to have early lock-up on weekends served in segregation, where there were no such administrative problems. After Mr. Clark had left the room, Mr. Csoka and the other officers agreed that this new policy would be implemented starting with Mr. Clark. He would be taken to segregation at 4:00 on Friday afternoon and let out at 8:00 Monday morning.
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